"Move-Away" Situations

What happens when one parent wants to move away with the children?

The law on these types of cases is very complicated and changing. You should talk to a lawyer if you want to move away with your children or if you are worried that the other parent will move away with your children. Click for help finding a lawyer.

Generally, a parent who has a permanent order for sole physical custody (also called “primary physical custody”) can move away with the children unless the other parent can show that the move would harm the children. But it is not always clear whether a custody order is permanent or temporary, so what the law requires may be different in your case. Talk to a lawyer to make sure you understand how the law applies to your specific circumstances.

If the parents have joint physical custody of the children and 1 parent does not want the child to move, the parent that wants to move with the children must show the court that the move is in the best interest of the children.

Keep in mind that, although the physical custody label (“joint” or “sole”) you agree to in your parenting agreement is important, if there is a dispute, the court will usually look at the actual parenting schedule at the time of the move, rather than rely on the schedule the parents put in their parenting agreement.

If you are worried that the other parent may want to move away with your children, or if you think you may want to move away with the children, talk to a lawyer before you make a parenting plan to make sure your plan protects your rights as much as possible.

Staying close to your children if they move away with the other parent

You can make a parenting plan that takes into consideration that your children are moving away and changes the visitation so that you can still have quality time with your children. Click for help with parenting plans.

Also, thanks to the Internet, there are other ways for you to stay connected to your children, not just e-mail. There is something called “virtual visitation” that helps you have “visits” with your children through web-based camera-computer technology.  Find more information on virtual visitation.

Traveling out of state or the country with your children

Usually, you need the other parent’s permission to travel out of state with your children, especially if you want to leave the country, or if, because of your traveling with your children, the other parent will miss his or her court-ordered visitation. If you cannot find the other parent, you will need to go to court and ask the judge for permission to let you leave without the other parent’s permission. You will have to look for the other parent and tell the judge everything you tried to find him or her.

You should also closely look at your existing custody and visitation court order and make sure that there are no restrictions on you leaving the state or your country with the children. If there are limits on whether you can take your children outside of your country or state, you usually need a court order giving you special permission to travel.

If the judge gives you an order letting you travel, make sure you get it in writing. Also make sure the order has everything you need, including the dates of travel and any other information so that you can travel with your children safely. Carry a copy of the order on you everywhere you go when you travel. You may need to show it to the border patrol, airport staff, or any official that asks to see it.

When the parents live in different states

If you and the other parent live in different states and you are trying to resolve custody issues, you should work with lawyers who have experience with these types of cases.

All states of the United States and the District of Columbia have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This law sets standards for when a court may make a custody decision and when a court must accept an existing decision from another state.

In general, a state may make a custody decision about a child if 1 of the following is true:

  • The state is the child’s “home” state. This means the child has lived in the state for the last 6 months, or was living in the state but is not there because a parent took the child or kept him or her out of the state.
  • The child has significant connections with people in the state, such as teachers, doctors, and grandparents. It can be proven that the child’s care, protection, training, and personal relationships are based there.
  • The child is in the state and either has been abandoned or is in danger of being abused or neglected if sent back to the other state.
  • No other state can meet 1 of the 3 tests listed above, or a state can meet at least 1 of the tests but has declined to make a custody decision.

A custody decision can only be made in 1 state. Once the first state makes a custody decision, another state cannot make another “initial” decision or modify the existing order.

Having the same law in all states helps achieve consistency in the treatment of custody decisions. It also helps solve many of the problems created by kidnapping or disagreements over custody between parents living in different states.